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Monday, June 07, 2021, 23:14
HKBA: Speak up for the judiciary in foreign places
By Grenville Cross
Monday, June 07, 2021, 23:14 By Grenville Cross

On May 29, at a ceremony in the Hong Kong Court of Final Appeal, four barristers “took silk”, a reference to the silk gown which barristers are entitled to wear upon their appointment as Senior Counsel. Such appointments are highly prized, and it is always a great thing, denied to many, when a barrister leaves the “Outer Bar” to join the “Inner Bar”. Some barristers apply numerous times for this distinction, which can open many doors, and entitles those in private practice to greatly enhanced fees.

Three of the four Senior Counsel are private practitioners, while the fourth is a prosecutor in the Department of Justice. With their appointments, there are now 105 Senior Counsel in private practice, of whom 93 are male and 12 female. Whereas the most senior is Martin Lee Chu-ming, who was appointed in 1979, the most junior is Norman Nip Sum-ping, from the latest batch.

As of January 2021, there were approximately 1,500 barristers in private practice, including the (then) 101 Senior Counsel. The Senior Counsel are the leaders of the Bar, and to them it falls to undertake many of the most important cases, to set standards, and to assume public responsibilities. In due course, some of them are destined to take up positions in the judiciary, although others prefer the freedom of private practice, where the pickings are greater and there is no retirement age.

This year, for the first time, the ceremony was presided over by Andrew Cheung Kui-nung, the new Chief Justice, who was appointed on Jan 11. In his speech of welcome to the new silks, he said he believed they would “rise to the challenges and opportunities that this new stage of your professional career brings with it”, a customary observation at these annual ceremonies. What, however, was novel this time was his call for Senior Counsel to stand up for the judiciary, whenever necessary.

In the Qing Dynasty (1644-1911), the emperors relied on the 40 warriors of the Yellow Jacket to protect them in battle, and many people will wish to know if the Harris-led HKBA, with its 105 Senior Counsel, will now heed Cheung’s exhortation by defending the judiciary abroad, whether by trumpeting its virtues or slaying untruths, or both. As things stand, regrettably, the answer has to be, “don’t hold your breath”

As Cheung pointed out, judges administer justice in accordance with the law, “without fear or favor, self-interest or deceit”. They exercise judicial power independently, “not subject to any interference”. If, he said, there is “repeated and gratuitous questioning of the judiciary’s independence”, based on disagreement with court decisions, then this, “whether domestic or from abroad”, damages the rule of law and erodes public confidence.

As Senior Counsel know firsthand how the courts actually operate, it is incumbent on them, said Cheung, to speak up for the judiciary “whenever the opportunity arises”. This was necessary not only to protect judicial independence, but also to defend its “local and international reputation as an independent judiciary”. In other words, Cheung now expects the Senior Counsel, whenever they can, to rebut unjust commentaries from abroad as well as locally, and to explain that the city’s judges are in the business of delivering justice.

Although some Senior Counsel have, since the outrages of the protest movement in 2019-20, bravely defended the judiciary from the calumnies of China’s geopolitical rivals, many have kept their heads down, which is disappointing. The Hong Kong Bar Association, for example, has international links, and its leaders should be screaming from the rooftops about the wonderful job the judiciary is doing to uphold the rule of law. After all, foreign media and law associations eagerly devour its criticisms of the government and the police force, so it would be nice if, as Cheung envisages, some of its energies could now be devoted to protecting the judiciary’s reputation from those who wish Hong Kong ill.

Some Senior Counsel, moreover, hold foreign nationality, which provides them with an additional opening. The HKBA chairman, Paul Harris, for example, is a British national, and he should be vigorously getting out the message in the UK that the city’s judiciary is second to none. Although Harris, like Philip Dykes before him, is never happier than when rushing out statements critical of the authorities, he needs now to become far quicker off the mark in backing the judiciary when it is under attack in foreign places.

Until January, Harris was, of course, an elected official of the UK Liberal Democrats, a political party which pursues an anti-China agenda and backs the attempts by the British foreign secretary, Dominic Raab, to undermine Hong Kong’s legal system. It has opposed the National Security Law for Hong Kong, called for sanctions, over the electoral reforms, to be imposed on both the chief executive, Carrie Lam Cheng Yuet-ngor, and the director of the Hong Kong and Macao Affairs Office, Xia Baolong, and sought a British boycott of the 2022 Winter Olympics in Beijing. Although Harris, following an outcry, has now, with clear reluctance, resigned his long-standing membership of the Liberal Democrats, this is not a Damascene conversion, but an attempt to shore up his position, and he has yet to show his worth.

On April 16, for example, after nine defendants, including Jimmy Lai Chee-ying, Albert Ho Chun-yan and Margaret Ng Ngoi-yee, were convicted of involvement in an unauthorized assembly on Aug 18, 2019, they were sentenced to terms of imprisonment of between eight and 18 months, and this upset their foreign backers. Whereas, in vile slurs on our independent judiciary, the former governor, Chris Patten, claimed that the judge’s verdicts showed that the defendants were in “Beijing’s vengeful sights”, the US consul general, Michael Hanscom Smith, weighed in to declare that it was “enormously troubling to have this case of people convicted of peaceful assembly”.

Anybody reading this gibberish might think that the defendants had been convicted by a kangaroo court on an illegitimate charge at Beijing’s behest. The question, therefore, arises of whether Harris has jumped to the defense of the trial judge, Amanda Woodcock, who must be greatly discomfited by these aspersions. Has he, for example, contacted Patten and Smith, or the foreign media and law associations, to explain that Woodcock, like all other judges, is constitutionally independent, that the defendants were convicted of holding a procession which endangered public safety without the necessary clearance, and that they received a fair trial before a professional judge? Has he told them that, in Hong Kong, everybody is equal before the law, and that anybody who deliberately flouts it must expect, as in the UK and the US, to face trial? And has he told them that the defendants, if they so choose, can challenge the judge’s decisions before the Court of Appeal, a highly acclaimed body? If he has not defended the judiciary in this way, why is that so? 

Although Harris succeeded Dykes as HKBA chairman on Jan 21, the situation was not much better under his predecessor. On Dec 2, for example, three offenders were imprisoned for their role in the six-hour siege of the police headquarters in Wan Chai in 2019, which caused chaos and paralyzed police operations. The magistrate, Wong Sze-lai, described the crime as “well-planned”, and provided cogent reasons for sentence. This, however, did not prevent the UK Liberal Democrats’ foreign affairs spokesman, Layla Moran, from immediately calling the convictions “a total miscarriage of justice”, and demanding “coordinated sanctions” against local officials.

Given the gravity of the siege, which would not have been tolerated in the UK and caused both injury and damage and resulted in numerous 999 calls going unanswered, the question arises of whether Dykes, or Harris, contacted Moran to set her straight. She obviously needed to know that the defendants had received a fair hearing on a very serious charge, and that, if they were dissatisfied with the outcome, they were entitled to appeal, and who better than Dykes, who comes from the UK, to provide her with these assurances. But if he, or Harris, who, at that time, belonged to Moran’s party, did not follow up with her in order to protect the judiciary’s overseas standing, they must explain why.

In January, moreover, Dominic Raab sought to sabotage a criminal trial in Hong Kong. After he discovered that the eminent British Queen’s Counsel, David Perry, was to prosecute a trial which was due to begin on Feb 16, he announced on Sky News that he could not understand how Perry, in “good conscience”, could agree to prosecute a case “when they will have to apply the national security legislation at the behest of Beijing”, even slandering him as “pretty mercenary”. Unfortunately, even though Raab had muddled up all the facts, Perry withdrew from the case, and the District Court was denied the services of a top-class prosecutor. So did Harris, or Dykes, ever contact Raab to explain that the case Perry was to have prosecuted concerned an unauthorized march, and had nothing to do with national security, and that, in any event, the defendants in the forthcoming trial would receive a fair hearing before an impartial judge? If not, why not?

Since, moreover, Raab is intent on harming Hong Kong’s legal system, Harris should, like Dykes before him, be bombarding him with the truth about its judicial arrangements. Once he announced in November that he plans a “review” of the arrangement whereby British judges sit in the Hong Kong Court of Final Appeal, it was incumbent on them to explain to Raab the vital contribution the overseas judges make to the city’s jurisprudence, and how they help to maintain the rule of law. Although, given his anti-China mindset, Raab would, in all likelihood, have given them short shrift, they should nonetheless have gone the extra mile by explaining things in terms simple enough for him to understand. If, as seems likely, they have not done this, shame on them, but it is still not too late for Harris to act.

The HKBA members, whether Senior Counsel or ordinary barristers, look to people like Harris to provide a lead, and to defend the judiciary in foreign parts. When this is not forthcoming, it is little wonder if many of them do not step up to the plate. In the Qing Dynasty (1644-1911), the emperors relied on the 40 warriors of the Yellow Jacket to protect them in battle, and many people will wish to know if the Harris-led HKBA, with its 105 Senior Counsel, will now heed Cheung’s exhortation by defending the judiciary abroad, whether by trumpeting its virtues or slaying untruths, or both. As things stand, regrettably, the answer has to be, “don’t hold your breath”.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

The views do not necessarily reflect those of China Daily. 

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